The court can invoke its extraordinary writ jurisdiction for the best interest of the child regardin

Yashita Sahu vs. State of Rajasthan and Ors., Criminal Appeal No. 127 of 2020 (@Special Leave Petition (Crl.) No. 7390 of 2019) – January 20, 2020.

The Supreme Court bench comprising of Justice Deepak Gupta and Justice Aniruddha Bose granted leave for the application made on January 20, 2020.

The Court held that there are various factors to be taken into  consideration while deciding what is best in the interest of the child.  No hard and fast rules can be laid down and each case has to be decided on its own merits.  It is oblivious  that when two parents are at war with each other it is impossible to provide a completely peaceful environment to the child. The court has to decide what is in the best interest of the child after weighing all the pros   and cons of both the respective parents who claim custody of the child.

Facts of the case:

Yashita Sahu and Varum Verma got married in India on 30.05.2016. Varun was already working in USA. Yashita also went to USA on 17.07.2016. A daughter was born to them on 03.05.2017 and was named Kiyara Verma and was a citizen of USA. Their relationship did not work out well. The wife applied for a Emergency Protection Order on 25.08.2018 and a petition for the custody of minor child on 29.08.2018 in Norfolk Court. An ex parte preliminary protection order was passed against the husband. The court passed an order to share the parenting time of the child. The wife was to stay in the marital residence till 01.12.2018. But the wife along with the child left to India on 29.11.2018, that was the date before the court hearing. The husband filed a motion for emergency relief before the Norfolk Court and an ex parte order was passed in favor of the husband granting the sole legal and physical custody of the child to the father on 02.10.2019. A warrant was also issued against the wife. A habeas corpus petition was filed by the husband in the High Court of Rajasthan and the court directed the wife to go along with the child to USA. This appeal is made as the wife is aggrieved by the judgment.

The issue considered by the court is whether a writ of habeas corpus is maintainable?,

The petitioners contended that the child is 2.5 years old and the care and protection of mother is necessary. It is also contended that the child is not needed to be produced for a petition of Habeas corpus as she is not in a illegal detention and is only in the custody of the natural guardian. The wife also said that there was a communication lag between the wife and the lawyer and the court. It was also stated that the husband was working on a contract till 2020 and the future of the wife and child will be in stake. Therefore, they wanted the writ petition filed by the husband in the High Court to be dismissed.

The Court held that It is too late in the day to urge that a writ of habeas corpus  is   not   maintainable   if   the   child   is   in   the   custody   of another parent.  The law in this regard has developed a lot over a period of time but now it is a settled position that the court can invoke its extraordinary writ jurisdiction for the best interest of the child.

The respondents contented that the husband is only willing to stay with the wife and the child and it is the wife who has violated the order of the jurisdictional court.

Whenever the question arises pertaining to the custody of the minor child, the Court decides upon the best interests of the child and not on considerations of the legal rights of parties. The Court held that it is the child who is affected by the war between the parents. It requires the love, care and affection of both the parents. The child should live with both of them. But in these kinds of problems, one of the parents is portrayed to be a villain. The child when lives with one parent, the other must be given sufficient visitation rights so that the child has contact with that person. The person who is denied of the custody must be given maximum visitation rights and contact rights, as the technology has improved, they should be allowed to make a call or a video call.

In the present case, the court gave its decision in two parts after considering the best interest of the child, her birth rights, visa of the father and comity of the courts.

In the first part, If the wife is willing to go back to USA, the husband will look after all the expenses including medicines, place of stay, education of the minor child etc., the husband will look after the child properly whenever he gets the visitation rights. The husband should make all the possible arrangements to be made for the mother and child to stay peacefully in USA. If the wife is willing to come and stay with the husband in USA, then the husband must make travel arrangements and the wife should comply with the order of the Norfolk Court on or before 20.02.2020. If the wife is coming to USA and is not willing to stay with the husband, then he should make alternative arrangements for her stay. He bears the expenses and does not initiate any penal action against the wife. These arrangements will continue till 30.04.2020.

In the second part, if the wife has not expressed her willingness to go back to USA, then the custody of the minor should be given to the husband or if he is unable to travel to India, to his mother before the High Court of Rajasthan on 03.02.2020.  Then the child will be taken to USA and the mother can make skype call every day. If the wife visits the same place where the husband resides, she will be given the custody of the child in weekends or the father should ensure that the child visits her mother twice in a year.

By making the following conclusions, the Court disposed the appeal.

View/ Download the Judgment: Yashita Sahu vs. State of Rajasthan and Ors

–  Vydurya Selvi Baskaran

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